More than five years after the publication of the UN Guiding Principles on Business and Human Rights (UNGPs), global progress on implementation is minimal.

In December 2016, three European countries [1] and the United States (US) published UNGPs National Action Plans (NAPs).  

The process of drafting the much-awaited plans was lengthy, involving a large number of civil society organisations, several rounds of multi-stakeholder consultations, and some promising first steps (for instance, the German NAP process started with a preliminary baseline assessment).

Regrettably, the end result disregarded most of civil society’s comments and proposals, failing to assure human rights protection from negative business impacts, and achieve substantial change in the area.

For example, although a major issues on civil society’s agenda, none of the NAPs adequately addresses a State’s duty to provide access to judicial remedy for victims of human rights abuses, beyond some general observations.

What’s more, even if the NAPs represent an acknowledgement of existing business and human rights issues, they all still rely on voluntary measures, and rewards and recognition schemes, instead of robust legislation. The issue of embedding human rights due diligence into law is neglected by the Swiss and US NAPs, while the German and Italian ones only go as far as leaving the door open for such reforms in the future.

Swiss civil society regards NAP as step backwards

The Swiss NAP, published 9 December, was met with disappointment by civil society. The Swiss Coalition for Corporate Justice (SCCJ) welcomed the NAP’s acknowledgement of the need to regulate business from a human rights perspective, its understanding of the UNGPs as a continuous process, and the fact that its scope includes companies domiciled and/or active in Switzerland.

Beyond these positive elements, SCCJ criticized the absence of new binding measures and the introduction of only six new measures to improve corporate accountability. What’s worse, “the new measures are limited to marketing [tools] and an improved application of the existing instruments (such as the training of embassy staff),” explains SCCJ.

SCCJ also pointed out that while the consultation process involved a large number of NGOs, almost none of their proposals were reflected in the final text. The organisation considers the NAP “a step backwards” compared to the draft published for consultations earlier in 2016.

Corporate responsibility remains a voluntary matter in Germany

German civil society organisations CorA, VENRO and das Forum Menschenrechte criticized the German NAP, published 21 December, for its lack of ambition. The organisations also mentioned that although civil society was involved in a first phase of consultations, they were excluded from commenting on the NAP’s content for the past year.

The organisations explained that the German Government expects companies to respect human rights throughout their business operations, but it does not apply any fines, civil charges or other sanctions if companies do not meet their obligations.

The plan also provides that if by 2020 half of all large companies do not deliver on their human rights obligations, legal avenues will be considered to ensure companies comply with these requirements.

Civil society reprobated the Government’s hesitation to regulate business behaviour, saying that the Government should go beyond considering creating new legislation, and take a more serious position against corporate impunity.

US National Action Plan only good if there is political will

The US NAP, published 16 December, during one of the final months of the Obama Administration, was regarded as a good starting point by US civil society.

The International Corporate Accountability Roundtable (ICAR), a civil society organisation based in the US, welcomed the manner in which the US Government requested and received consultations from civil society during the drafting process. However, ICAR also pointed out the plan’s failure to successfully address a multitude of issues raised by civil society and labour organisations during these consultations.

Like the Swiss and Italian plans, the US NAP is an inventory of existing policies regarding the conduct of US corporations operating abroad, proposing only a small number of new actions to address the risks and negative impacts business activities can have on human rights.

Responsible business conduct is an obligation that cannot and should not be shirked,” said Amol Mehra, Director of ICAR. “We call on President-elect Trump to implement the laws and policies contained in the National Action Plan in a steadfast and non-partisan way, and call on all stakeholders to work together to deepen and extend responsible business conduct as a norm rather than an exception beyond the National Action Plan.”

The Italian NAP puts corporate accountability on hold, pending review

The Italian NAP reaffirms the UNGPs’ key principles, making reference to several core business and human rights issue, including access to remedies. Yet, despite improvements made after a previous public consultation, it avoids introducing new legislation, only leaving the door open for further consideration.

Comparable to the Swiss and US plans, the Italian NAP is essentially a summary of ongoing processes and existing objectives, framed by vague commitments - which will be difficult to monitor in the absence of a timeline and clearly allocated responsibilities.

But, although imprecise, these commitments include some positive elements. For example, the promise to look into enhancing enforcement of laws requiring corporate respect of human rights, and to conduct a comprehensive review of the current domestic legal framework. The review will assess if legislative reforms could introduce provisions on duty of care or due diligence for companies. Also, references made to the third pillar of the UNGPs can be seen as a preliminary step towards improved access to judicial remedies for victims of corporate abuse.

If done well, the assessment and monitoring of the regulatory framework could mean that the NAP’s 2018 midterm review builds on solid evidence about existing legal gaps in Italy and the avenues to address them.

The NAP also proposes the creation of a cross-departmental Working Group on Business and Human Rights, and a multi-stakeholder consultative body.

Italian civil society hopes that the Italian NAP, despite its weaknesses, marks the beginning of a period of stronger action and dialogue on business and human rights in Italy.

Conclusion

The publication of these NAPs is in itself a step forward, being a renewed commitment from States to look into some of the issues pertaining to the field of business and human rights.

At the same time, governments could use this opportunity to undergo a thorough assessment of the UNGPs’ implementation gaps, and propose a smart mix of voluntary and regulatory options to tackle corporate human rights abuses.

The NAPs could also play a role in streamlining human rights across all state departments, ensuring greater coherence, and fostering a constructive multi-stakeholder dialogue.

However, due to the vague nature of their content, they will only be as effective as they are allowed to be, relying strongly on political will. And in the current political climate, it remains to be seen how committed decision makers will be to putting people and the planet above corporate interests.

By not putting forth any ambitious new measures or legislation, the new NAPs are confirming the global trend we have been witnessing for the past two years.

To date, none of the NAPs released prior to December 2016 have shaped a truly ambitious business and human rights agenda. Nor did they - or the four new ones - give any serious indications that States are going to challenge the current approach to business and human rights which relies primarily on incentivizing good behaviour, and fails to prioritize sanctioning misconduct.

Unfortunately, the existing NAPs look more like a way to legitimize the status quo, and less like a pathway to achieve a level playing field built on high corporate accountability standards.

For the 20 EU states which have not yet released implementation plans - some having not even started a drafting process – the December NAPs are a sign that more political will and concrete actions are needed to guarantee human rights protection and access to remedies for victims of corporate abuse.

The states preparing to publish NAPs – a list which includes Spain, France, Belgium, Poland, Greece, Ireland, Scotland, Slovenia, Czech Republic and Portugal – should take into account civil society’s comments and commit to more ambitious action. This involves creating new legislation that accurately addresses the gaps in human rights protection and access to remedies.

The states lagging even further behind, need to begin an inclusive consultation and drafting process, and start rising up to society’s expectations to make business more accountable for how it impacts people and the planet.

ECCJ would like to thank all the organisations that contributed to writing this article:

Switzerland: SCCJ

Germany: CorA, VENRO, Forum Menschenrechte

Italy: Human Rights International Corner

US: ICAR

       


[1] Seven European States had released NAPs before December 2016: The United Kingdom, The Netherlands, Denmark, Finland, Sweden, Lithuania and Norway